Let voters — not judges — decide abortion policy

Abortion is back in the news in a big way, with the need to appoint a Supreme Court justice to replace Ruth Bader Ginsburg. Pro-lifers see the appointment of Amy Coney Barrett as a chance to overturn the court’s 1973 Roe v. Wade decision, which legalized most abortions nationally, while pro-choice advocates see it as an existential threat to women’s rights.

The stakes are so high that activists are urging voters to choose the president and U.S. senators based on whom they would appoint to the court. Voters did just this in 2016, when there was an open seat on the line. A Pew poll back then found that 21 percent of voters said a president’s choice for the Supreme Court was “the most important” issue in their voting decision, and another 48 percent said it was “important,” more than enough for this single issue to swing the election. 

Abortion, the most corrosive and polarizing issue in American politics, once again threatens to eclipse everything else. With all of the problems facing the country – COVID, the economy, the environment, international relations – the prospect of this one issue being decisive is alarming. And it’s disturbing that our democracy has come to be so focused on nine unelected judges, and what they might decide about abortion. 

It didn’t have to be this way. Nowhere else in the world is abortion such a polarizing issue. The U.S. is an outlier because current law does not reflect the will of the people. Abortion law was decided in the least democratic way possible, through unelected judges with lifetime appointments. It might come as a surprise to many Americans, but in most of the rest of the world, abortion is a “normal” issue that is decided democratically by legislatures or by referendums. 

Italy offers an illuminating comparison to the American experience. As in the United States, abortion had been illegal in Italy for decades when public opinion began to shift toward a more permissive approach in the 1960s and 1970s. In 1978, the parliament approved a law legalizing abortion under a formula similar to the one adopted in Roe v. Wade. Political groups on both ends of the spectrum challenged the law, using the country’s referendum process to call a national vote in 1981. Voters soundly rejected both proposals, thereby approving the middle-ground policy of the original law. 

The referendum settled the issue in Italy. Abortion receded as a point of contention. No powerful interest groups like the National Right to Life or NARAL Pro-Choice America appear to contest the issue, and Italian politics did not polarize around the issue. Italians accepted that the majority had spoken, and they mostly moved on to other pressing matters. 

Ireland is another good example. A deeply Catholic country, Ireland has held two referenda on abortion. In the most recent vote, in 2018, by a 2-to-1 margin voters approved a constitutional amendment providing for legal abortion. The election result was unambiguous, and most on the losing side accepted it as a valid exercise in democracy.

These examples show how a contentious issue can be resolved amicably through democratic processes. There is good reason to believe that Americans, if allowed to choose the policy themselves, would de-escalate the issue and settle on a moderate position similar to what most other countries have chosen. 

Opinion polls tell us that unlike the most extreme pro-lifers, most Americans believe that abortion should be legal in some circumstances, such as when a woman becomes pregnant due to rape and when the health of the mother is at severe risk; and unlike the most extreme pro-choicers, most believe there should be a ban on the use of abortion to select the sex of a child, and generally limiting the procedure to the first trimester. 

If Americans chose abortion policy democratically, it’s a safe guess that the United States would end up with a policy similar to those found in most European countries, where abortion is allowed early in pregnancy and prohibited late in pregnancy. 

The undemocratic process used by the United States compared to other countries goes beyond the issue of abortion. As I show in my recent book, “Let the People Rule,” the United States has become one of the least democratic of the world’s major democracies in terms of letting the people vote. Almost all countries now consult voters on major national issues from time to time, something the U.S. has never done, even though opinion surveys show that two-thirds of Americans would like to vote on important issues. 

Getting from today’s judge-imposed status quo on abortion to a more democratic outcome won’t happen overnight. As a first step, judges could begin extricating themselves from the issue, declining to intervene as new issues arise, and allowing elected officials and voters to make more decisions.

In the longer run, one can imagine Congress holding an advisory referendum in which voters can offer their opinion on abortion policy. If the election revealed a clear majority position, as polling data suggests there is, our elected officials could formalize it in a law. This would bring some closure to the issue, and our democracy would no longer be hostage to the intense polarization it has brought us.

John G. Matsusaka is a professor at Marshall School of Business, Gould School of Law and in the department of political science at the University of Southern California. He is also executive director of the Initiative and Referendum Institute, a nonpartisan educational organization. He is the author of the recently published book, “Let the People Rule: How Direct Democracy Can Meet the Populist Challenge” (Princeton University Press, 2020).